Atharva Chandra
Remembering Justice Chelameswar’s dissent, an argument towards primacy-neutral judicial appointment process in India.
The conflict over the method of judicial appointments in India has taken a sour turn, where the enduring criticisms of lack of oversight and transparency in the collegium system, the present judicial appointments procedure, has been levied by the executive. These criticisms are a call towards reform and institution of a National Judicial Appointments Commission [“NJAC”], as advanced in the 99th amendment [“The Amendment”] of the Constitution of India, which was previously struck down by the Supreme Court of India in Supreme Court Advocates on Record Association v. Union of India [“NJAC case”] in 2015. The unconstitutionality of the same was attributed to the violation of the basic structure of the Constitution, particularly the independence of judiciary by the amendment. While the independence of judiciary in contemporary times has been characterized by a primacy of judiciary in the appointment of judges to the Supreme Court and High Courts of India, the same was not envisaged for by the constitution-makers of India. This article aims to first, conduct an inquiry of the way the collegium system in India was arrived upon and second, offer a primacy-neutral judicial appointment process via a comparative appraisal of the procedure in United Kingdom.
Arriving at the Present-Day Collegium System
Dr. Ambedkar supported the adoption of Article 124 and 217 of the Constitution of India, which expresses the appointment procedure of judges to be the result of a consultation between the President and the Chief Justice of India [“CJI”], by providing that such a responsibility could not have been left solely to the executive, as existed in the then Canadian and British model at the time. The rationale behind the same was that concentration of power in the hands of the executive would undermine the independence of the judiciary, if there were to arise a situation where the executive had to be checked by the judiciary. The infamous appointment of Justice A.N. Ray as the CJI in 1973 by the Indira Gandhi regime and the subsequent “closing of the courts” to entertaining habeas corpus petitions against arbitrary arrests by political prisoners during the Emergency strikes as the most prevalent example of abuse of executive primacy in judicial appointments.[i] Dr. Ambedkar applied the same logic while denying judicial primacy any place in the Constitution, as it was believed that judges are also humans and if left without checks, may be prone to similar misuse. The same fears have been substantiated by reality as the works of Abhinav Chandrachud highlight the way a few judges were also prone to sentiments, such as socio-religious factors and personal motivations, other than the merit of a candidate while deciding their judicial appointment.[ii] Dr. Ambedkar also argued that Article 124 insulated judicial appointments from such socio-religious and political motivations via the exclusion of the legislature in the procedure, dissimilar to the American model which is often criticised to produce judges with bias.
Ironically, one of the most comprehensive texts highlighting the drawbacks of the collegium system comes from the Supreme Court itself, which is the dissenting opinion of Justice Chelameswar in the NJAC case. Largely, there are two themes which characterize Justice Chelameswar’s dissent, the role of judiciary in the judicial appointment process as envisaged by the constitution-makers and the mode of appointments which shall be the most effective and efficient.
The role of judiciary has been defined via the “Three Judges Cases” over the years. In S.P Gupta v. Union of India, it was observed by the court that the executive, particularly the President is not bound by the advice which the CJI offers in the consultation process. Such a primacy given to the executive led to several instances of succession of judges in the appointment of the CJI and the violation of the seniority norm. It was also observed by Justice Chelameswar that during 1984-85, only 32 appointments were made of the 53 which the CJI recommended. This increased the judiciary’s apprehensions regarding judicial independence, thus leading to the verdict in the Supreme Court Advocates-on Record Association vs Union of India in 1993. The judgement provided that “consultation” must be read as “concurrence” with the CJI and effectively, the opinion of the collegium. Lastly, the primacy of the judiciary was cemented in law as Special Reference 1 of 1998, the Supreme Court provided to the President that the CJI and the collegium system are the “most appropriate authorities” to make recommendations for judicial appointments, cementing the collegium system as the judicial appointment process in India.
One of the reasons which Justice Chelameswar attributed this conclusion to the decades long legal conflict over judicial appointments was also the concerns regarding the efficiency of the process. The support for the collegium system lied in the argument that it was the most efficient process of appointments as other procedures, where there would be deliberation with the executive, would involve bureaucratic hindrances and further exacerbate the high vacancies across courts in India. Furthermore, other procedures hinted as a possibility of decreased weight to the opinion of the Supreme Court in the appointments, which was the stark reminder of the past compromises which had been made with judicial independence.
A Hope for a Primacy-Neutral Appointment Process
It has been often argued that judicial primacy is not the sole means of ensuring judicial independence, as it leads to an opaque process in terms of judicial appointments as we see today. The NJAC provides an alternative but it also provides that any judicial appointment can be vetoed by the two members present in the 6-member commission. The idea of veto primacy by any organ of the government was essentially where our constitution-makers drew the line. In their envisage of the appointment procedure being a ship, which would sail by the winds of CJI’s consultations, vetoes inevitably provide primacy to one or the other organ of government on a case-to-case basis. A solution to this comes via a study of the judicial appointments in United Kingdom, where Part III of the Constitutional Reform Act, 2005 [“CRA”] provides that an independent appointment commission may make a recommendation which the Chancellor, who constitutes the commission, then recommends to the Prime Minister, who must forward the same to Crown for appointment under law. The commission involves the President of the Supreme Court of United Kingdom [“SCUK”], a senior judge who does not belong to the SCUK and representatives of judicial appointment bodies of England & Wales, Scotland and Northern Ireland, one of whom must not be a lawyer. Here we see a similar consultation process between the executive, which is represented by the Chancellor and the judiciary. The positive of the process is the power of the “single veto” which rests with the Chancellor, who may accept, reject or ask the commission to reconsider their recommendation, but for a particular vacancy the veto can be exercised only once and the second recommendation will have to be accepted. The idea is to not pit one organ of the State against the other, but to introduce effective scrutiny to the process while also ensuring that there exists no scope for bureaucratic roadblocks. This creates a system of checking the suitability of candidates while avoiding primacy or absolute power to the executive or the judiciary in the appointments process. While the CRA was enacted in 2006, the single veto has been used the least times by the Chancellor and whenever used, the reasons for the same have been widely reported, as required by the CRA.
Conclusion
While it is not recommended that the model of NJAC in India be completely replaced by the model in UK, as it involves substantial aspects to improve the judicial appointments process which helps increase its transparency and efficiency, it is advised that the provision of the single veto be adopted in the voting powers of the members, as it shall act as a mechanism of equitable power-sharing while avoiding primacy. As history tells us, primacy often led to its misuse, which leads to another organ of the government replacing the prior in terms of primacy, continuing the vicious cycle which threatens the independence of judiciary. While it was noted by Justice Chelameswar that judicial primacy is not the only road to judicial independence and it arguably does not fall within the basic structure of the Constitution, experiences with executive primacy have also led to unfortunate experiences. The judicial appointment system must be a vehicle which is driven by the judiciary as they possess better knowledge about judicial capacity of prospective candidates, as Justice Khehar ruled in the NJAC case, but not without the check-points of the executive, as envisaged by the constitution-makers.
[i] Abhinav Chandrachud, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court in India 72-96 (Oxford University Press, New Delhi, 1st edn., 2014)
[ii]Abhinav Chandrachud, Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-1989 137-166 (Penguin Random House India, Digital, 1st edn. 2018)
The author is a third-year student pursuing B.A. LL.B from National Law University, Jodhpur
Image Credits: The Week
Constitutional Law Society 
Leave a Reply